Mappier v. Mortimer

New York Supreme Court

Mappier v. Mortimer

11 Abb. Pr. 455

DecidedOctober 15, 1871

StatusPublished

This text of 11 Abb. Pr. 455 (Mappier v. Mortimer) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mappier v. Mortimer, 11 Abb. Pr. 455 (N.Y. Super. Ct. 1871).

Pincite

Opinion

Cardozo, J.

The complaint states two different causes of action. The defendants are sought to be held upon the first because of their being stockholders. There is no averment in the first cause of action that the defendants were trustees, and it would be inappropriate to that cause of action. The second cause of action is based upon an omission to do a duty which belonged to the defendants, as trustees. The first cause of [459]*459action is founded on implied contract (Corning v. McCullough, 1 N. Y. [1 Comst.], 47). The second is against a trustee, upon a liability created by operation of law (35 N. Y., 412 ; 19 Barb., 529).

These causes of action do not belong to the same class; they are not both upon contract, neither are both against a trustee. • They cannot, therefore, be united (Code, § 167), and the demurrer on that ground, is, therefore, well taken.

Judgment for plaintiff on demurrer, with leave to plaintiff to amend, on usual terms.

Free access — add to your briefcase to read the full text and ask questions with AI

Cardozo, J.

The complaint states two different causes of action. The defendants are sought to be held upon the first because of their being stockholders. There is no averment in the first cause of action that the defendants were trustees, and it would be inappropriate to that cause of action. The second cause of action is based upon an omission to do a duty which belonged to the defendants, as trustees. The first cause of [459]*459action is founded on implied contract (Corning v. McCullough, 1 N. Y. [1 Comst.], 47). The second is against a trustee, upon a liability created by operation of law (35 N. Y., 412 ; 19 Barb., 529).

These causes of action do not belong to the same class; they are not both upon contract, neither are both against a trustee. • They cannot, therefore, be united (Code, § 167), and the demurrer on that ground, is, therefore, well taken.

Judgment for plaintiff on demurrer, with leave to plaintiff to amend, on usual terms.

Cite This Page — Counsel Stack

Bluebook (online)

11 Abb. Pr. 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mappier-v-mortimer-nysupct-1871.

Opinion

Related

Cite This Page — Counsel Stack